Friday, May 27, 2016

The States' "Bathroom Case" and Dynamic Statutory Interpretation

by Michael DorfOn Wednesday, Texas and nine other states (as well as various localities and officials) sued the United States, seeking to block implementation of the policy regarding access to restrooms by transgender students set forth in the May 13 "Dear Colleague" letter from the Justice Department and the Department of Education. The lawsuit raises a number of procedural questions regarding jurisdiction and the Administrative Procedure Act--procedural questions of the sort that I often blog about. Indeed, readers may recall that I addressed only a technical procedural question a couple of weeks ago, in my post on the dueling lawsuits by the U.S. and North Carolina over the latter's "bathroom law."

For today, I want to bracket the interesting procedural questions raised by this latest Texas v. U.S. case --not to be confused with U.S. v. Texas,the immigration case now before the SCOTUS. The two cases are similar. In both, Texas argues that the Obama administration is attempting to accomplish by non-rulemaking agency action something that can only be accomplished either by legislation or by notice-and-comment rulemaking. Moreover, although broad constitutional objections to the exercise of executive power are asserted in both cases, close inspection shows that at bottom, each case is really about statutory interpretation. I might have more to say about the immigration case if and when the Court decides it later this Term. For now, I want to focus on the statutory interpretation issue in what I'll call The Bathroom Case.
The core of the plaintiffs' argument goes like this: When Title IX was enacted and amended, nobody thought that its prohibition on sex discrimination included either a prohibition on transgender discrimination or an obligation to permit transgender students to use sex-segregated restrooms designated for persons of the sex that corresponds to their gender identity rather than their at-birth biological sex. Indeed, its proponents provided assurances that restrooms segregated by biological sex are consistent with the statute. Thus, Title IX does not contain any obligation regarding transgender students today, and the "Dear Colleague" letter is accordingly ultra vires.
My goal here is not to try to resolve the case, which would involve many considerations I'm putting aside. In addition to the procedural issues noted above, there is a question of whether the federal government's interpretation of Title IX is entitled to Chevron deference. If it is, then the fact that the interpretation is a change from prior policy would not doom the federal government's position. The Chevron case itself, after all, upheld a changed interpretation of a statute.

But whether we are asking if the DOJ/DOE interpretation of Title IX is "reasonable" (as a court would ask in Step 2 of Chevron) or whether that interpretation is correct (as a court would ask if no deference is due), it's worth noting what appears to be an assumption embedded in the plaintiffs' core argument in The Bathroom Case: If Title IX didn't previously mean (or allow as a reasonable interpretation) that transgender discrimination or exclusion is sex discrimination or exclusion, then it can't mean that now, because at no time did Congress amend Title IX to include transgender discrimination. Put differently, the plaintiffs' argument depends on a view of statutory interpretation as static.

In an important article and book of the same name--Dynamic Statutory Interpretation--Professor Eskridge argued that traditional approaches to statutory interpretation aimed to uncover the original intention of the legislature, but that just as many people reject originalism in constitutional interpretation, so we should recognize that statutory interpretation also changes over time.

Since Eskridge first advanced the idea of DSI almost 30 years ago, the terms of the debate in both statutory interpretation and constitutional interpretation have changed somewhat. In the former, it is now conventional to distinguish among: (1) intentionalism; (2) purposivism; and (3) textualism.

Intentionalism in statutory interpretation aims to uncover and apply the intentions of the statute writers. Intentionalism founders on the problems--noted long before Eskridge wrote DSI--that even where the legislature anticipated a question, as a multi-member body it lacked any single intent with respect to that question, and that many of the hard questions in statutory interpretation are hard precisely because the legislature did not anticipate them. For these and other reasons--including skepticism about the reliability of legislative history--there are not many intentionalists around these days.

Purposivism, which is often associated with the Legal Process School of Hart & Sacks, does not aim to recover the actual subjective intentions of particular legislators or the legislature as a whole. Rather, it asks what purposes (which generally exist at a higher level of generality than intentions) reasonable legislators would have been pursuing in writing the statute the legislature enacted, and then construes statutory ambiguity in the way most likely to advance those purposes.

Textualism begins with skepticism about the legibility of legislative intent and the provenance of imputed legislative purpose. As to the latter, textualists warn that legislation is typically a compromise among people pursuing multiple conflicting purposes, so that any effort to infer and apply a purpose beyond what appears on the face of the legislation will likely simply impose the policy views of the judges.

Needless to say, these are almost comically abbreviated summaries, but they will suffice for now to make the point I wish to make: Intentionalism but neither purposivism nor textualism functions in the way that the plaintiffs' core argument in The Bathroom Case assumes that statutory interpretation works.

In making the foregoing statement, I am not saying that the plaintiffs will necessarily lose. What I am saying is that under neither purposivism nor textualism is a proposed reading of a statute ruled out simply because it would have surprised (or even angered) the lawmaker. To quote Justice Scalia in textualist mode in a sexual harassment case, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Likewise, if the most reasonable purpose to attribute to the Congress that wrote and amended Title IX was to protect people against sex-role stereotyping and we now realize (even though the drafters and amenders of Title IX didn't realize) that requiring transgender individuals to use restrooms that don't match their gender identity is sex-role stereotyping, then Title IX should be read to forbid trans discrimination and exclusion.

Thus, the plaintiffs' core argument in The Bathroom Case makes an assumption that is inconsistent with two of the three leading approaches to statutory interpretation, and specifically the two approaches that are dominant in the courts.

Readers might be wondering whether I am saying that textualism and purposivism are dynamic, whereas intentionalism is static. Yes and no. Textualism is a family of theories rather than a single theory but for the most part textualists in statutory and constitutional interpretation believe that the meaning (i.e., semantic content) of a term does not change, but as readers know from debates about constitutional cases, the application can change. If it turns out that the meaning of "sex discrimination" is "practices that reinforce sex stereotypes" then we can recognize today that transgender discrimination is sex discrimination even though the enactors of Title IX would have disagreed with the specific application.

And again, likewise for purposivism. Purposivists tend not to talk much about whether the purpose of a statute is fixed at the time of enactment, but even if it is, just as the semantic meaning of the text can lead to results that the drafters wouldn't have anticipated or agreed with, so the objective reasonable purpose of the statute they enacted can turn out to have implications they didn't desire or expect. Both textualism and purposivism can be dynamic with respect to specific applications and expectations.

The, the plaintiffs' core argument in The Bathroom Case should fail. Perhaps there are other grounds on which they can win, but the fact (if it is a fact) that the application of Title IX to forbid trans discrimination or exclusion would have surprised the Congress that enacted or most recently amended Title IX is not dispositive.

Mike -- is the core of the pltfs' argument really focused on the subjective intent of Congress? Your summary itself suggests otherwise. Namely, you say their argument goes like this: "When Title IX was enacted and amended, *nobody* thought that ..." The focus on "nobody" -- which strikes me as both legally and factually correct -- would seem to be perfectly consistent with a form of textualism that looks to the contemporaneous *public* understanding of both semantic meaning and application, analogous to expected-applications originalism.

Like you, I'll refrain from opining more broadly on the merits, other than to query how any theory of statutory interpretation can lead to DOJ's result that it's discrimination "because of sex" to exclude transgender individuals from bathrooms that don't match their biological sex, but not to exclude cisgender individuals from bathrooms that don't match their biological sex: as the same trait is the basis for exclusion in both cases, one would think that they'd rise or fall together; and one would think that DOJ's attempt to distinguish between the two is *itself* discriminating based on transgender status (by denying *only cisgender* individuals the ability to use bathrooms that don't match their biological sex).

Hashim's question rests on a false premise -- namely, that the exclusion of cisgender and transgender individuals from bathrooms not matching their biological sex would be based on the "same trait." The transgender individual wants to enter that bathroom -- but is excluded from it -- because the gender with which they identify does not match their biological sex. A cisgender individual cannot make the same claim for entry, and thus is not excluded on the same ground. (Parenthetically, I look forward to "reverse discrimination" cases of the sort Hashim seems to posit, where cisgender individuals complain that they are being excluded from bathrooms designated for use by the opposite sex.) Thus, only the transgender individual is being discriminated against based on a "practice that reinforces sex stereotypes," to use Professor Dorf's proposed present-day understanding of discrimination "because of sex."

Jim -- you're incorrect, because you're focused on the wrong actor. When determining the *trait* that's the *basis* for exclusion, you have to look at the rationale of *the person doing the excluding.* And here, the State is basing exclusion *solely* on the fact that biological sex doesn't match the sex-specific bathroom -- the State is completely indifferent as to *why* the biological sex doesn't match the sex-specific bathroom, and is completely indifferent (indeed, agnostic) as to whether the excluded individual is cisgender or transgender. In short, the fact that a transgender woman and a cisgender male might have *different motives* for wanting to use the woman's restroom doesn't change the fact that they're both being excluded for the *same reason* -- namely, that they are not biologically female.

Actually, Hashim, the law does not enable a state actor to avoid a charge of discrimination by giving a specialized meaning to the terms used in a regulation, and thereby claiming that the regulation is "neutral" and non-discriminatory. A state that regulates bathrooms on the basis of biological equipment can certainly be said to be discriminating against a transgender woman who, as a result of the regulation, cannot use the bathroom corresponding to her gender. A cisgender male who wishes to use the woman's restroom is not similarly situated to the transgender woman who wishes to do so -- the two individuals are of different genders. A state regulation that attempts to define away this distinction simply begs the question -- whether the state *thinks* it is excluding these individuals for the *same reason*, the law need not accept this characterization. (And, of course, there is the separate issue of a disparate impact theory, which I believe is available under Title IX, and under which the state's purportedly "neutral" motivation is irrelevant.)

And actually, Hashim, my lack of familiarity with Title IX led me to overlook the best counterargument to your position -- i.e., the language of the statute itself, 20 U.S.C. section 1681, which provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." This language quite clearly focuses on the individual being excluded, and not the actor that excludes them.

Jim: as you correctly note, the statute says "on the basis of sex" (not, incidentally, "on the basis of gender"). In a disparate treatment case -- as opposed to a disparate impact case -- an action is taken "on the basis of trait X" if it is done "because of trait X," not merely "in spite of trait X." See, e.g, Feeney. Here, the State's practice is to exclude individuals whose biological sex does not match the sex-specific bathroom, and it applies that practice equally to cisgender and transgender individuals. It thus is acting "on the basis of", or "because of," *biological sex.* It is not acting "on the basis of," or "because of," *gender identification*; rather, it is acting "in spite of" gender identification, by completely ignoring gender identification and focusing exclusively on biological sex (unlike DOJ, which is indeed facially discriminating based on gender identification). So, unless DOJ is going to take the position that federal law prohibits sex-segregated bathrooms, its disparate-treatment claim makes no sense.

I'm not sure if DOJ is even bringing a disparate-impact claim. But if it is, it's unlikely that there's a disparate impact based on *sex* (unless there are differential rates of transgender men and transgender women); rather, there's only a disparate impact based on *gender identity*). And such a disparate impact claim makes no sense, because DOJ's remedy would lead to *disparate treatment* against cisgender individuals, but see Ricci -- again, unless DOJ argues that the remedy is that there can't be sex-segregated bathrooms at all.

Hashim, all of your arguments rest on ipse dixit acceptance of the state's characterization of what it means to discriminate "on the basis of sex." Since the DOJ is advancing a different interpretation of this phrase, of course it "makes no sense" to you. Look no further, however, than Professor Dorf's original post for a theory of statutory interpretation that would support the DOJ's position -- namely, that through the application of purposivism, the phrase "because of sex" under Title IX should be understood as protecting against sex-role stereotyping. A state's focus on an individual's biological equipment as defining their "sex" rests precisely on this stereotyping, and no amount of insistence that the state is treating everyone equally on the basis of its own preferred definition of an individual's "sex" can disprove this point. As I said, it just begs the question.

Jim, I think you're missing my point. I'm perfectly happy to accept (for here) your argument that "a state's focus on an individual's biological equipment as defining their 'sex' rests precisely on [prohibited sex-role] stereotyping." But that would just mean that a State law that "focuses on an individual's biological equipment" is prohibited discrimination. That, however, is *not* what DOJ is arguing. Rather, they're arguing that it's *permissible* to "focus on an individual's biological equipment" when regulating bathroom usage *if, but only if*, that individual is cisgender rather than transgender. That distinction, however, is incoherent (in addition to being facial discrimination on the basis on gender identity). A state's focus on biological equipment cannot simultaneously be sex-stereotyping and not sex-stereotyping, depending on the particular individual who happens to be the subject of the focus. If the State is "sex-stereotyping" transgender men by saying that they can't use the "men's" bathroom because they lack "male" biology, then it's *equally* "sex-stereotyping* cisgender women by saying that they too can't use the "men's" bathroom because they too lack "male" biology. In short, the State is using the *same trait* as the basis for exclusion, and thus, whatever "sex-stereotyping" that trait purportedly reflects, the State is engaging in the *same sex-stereotyping* when it applies that trait to all individuals, whether cisgender or transgender.

Sorry I'm late getting back to the party. I was busy doing other things today. For myself, I'm going to continue to bracket the question whether requirements to use bathrooms based on biological sex rather than gender identity IS sex discrimination.

Now, with respect to Hash's original question to me: Right! I should have been clearer that I was distinguishing between (1) concrete expected applications and (2) semantic meaning, rather than between the drafters and the public. I think the argument still works, of course, for the sorts of reasons that new originalists offer for the possibility of changed application even with constant meaning. The fact that no one expected or intended sex discrimination to cover gender identity doesn't tell us very much about the semantic content (or semantic intentions) of the public at the time that Title IX was enacted or amended.

You're right, Hashim, I am missing your point. Under the DOJ's position, why aren't transgender and cisgender men being treated exactly the same? Each is entitled to use the bathroom corresponding to their gender identity. In either case, I don't see the DOJ viewing the individual's biological equipment as relevant in any way -- the DOJ is not, as you suggest, "focusing" on this equipment in some cases but not others. The cisgender man isn't excluded from the woman's bathroom because of his biological equipment -- he's excluded because he's *not* a woman, the very same reason the DOJ gives for advocating that the transgender man should use the man's rather than the woman's bathroom.

I'm not denying that the state is also being consistent -- in accordance with its conception of "sex," at least -- in steering people toward bathrooms based strictly on their biological equipment. But if you allow for the possibility that the state's conception is wrong under a proper understanding of Title IX, then only transgender individuals suffer the consequences. Those who have biological equipment matching their gender identity can do exactly what they've done all along, and I doubt that any of them would claim to be victims of discrimination (although I'm prepared to be disappointed on that score -- see my earlier remark about reverse discrimination).

Funny how this all works out -- nobody's threatening the right of the majority to do exactly as they wish, but let's make sure through a "neutral" rule that a minority cannot. That doesn't sound at all like something that a "Department of Justice" might want to look into, does it?

Jim -- the question is whether DOJ is being consistent in what it claims constitutes prohibited "discrimination on the basis of sex." According to you, the argument is that it is "discrimination on the basis of sex" for a State to engage in "sex stereotyping," and it is "sex stereotyping" for a State to focus on "biological equipment." But the state's regulation of bathroom usages focuses on "biological equipment" for *everyone*, both cisgender and transgender. So if the state's focus on "biological equipment" is "sex stereotyping", and if "sex stereotyping" is prohibited "discrimination on the basis of sex," then sex-segregated bathrooms should be prohibited completely.

It doesn't matter that DOJ is consistently arguing that discrimination *on the basis of gender identity* is prohibited. The problem is that the only way that DOJ can ram the concept of gender identity discrimination into the statutory prohibition on sex discrimination is by arguing that States are prohibited from "sex stereotyping," and the States' focus on biological equipment is either "sex stereotyping" or it isn't -- it can't be sex stereotyping when applied to transgender individuals and not sex stereotyping when applied to cisgender individuals.

I still don't see the problem, Hashim. Let's accept your contention that a state's focus on biological equipment constitutes sex stereotyping across the board, with respect to both transgender and cisgender people. Happily for them, the cisgender folks suffer no adverse consequences or harm whatsoever from the state's misconception of what Title IX requires, because their biological equipment happens to match their gender identity.

As Justice Thomas recently reminded us in Heffernan, no cause of action arises from an unauthorized government act if it transgresses no constitutional or statutory rights of the plaintiff. Or, as Title IX puts it, the cisgender male hasn't been excluded from the men's bathroom because of his sex -- in fact, he hasn't been excluded from this bathroom at all -- even though the state's reason for confining him to the men's bathroom rests on sex stereotyping rather than a proper understanding of Title IX. The transgender male, in contrast, would be excluded from the men's bathroom because of his sex. Nothing about this argument leads to a prohibition on sex-segregated bathrooms, unless you beg the question of what the "sex" in "sex-segregated" should mean.

Jim, once you accept the contention that a state's focus on biological equipment constitutes sex stereotyping across the board, then that practice does indeed impose "harm" on those cisgender individuals *who want to use opposite-sex bathrooms but are excluded from doing so based on the sex stereotype.* So, for example, cisgender women who want to use the men's bathroom because the line is shorter are indeed *harmed* in that they're excluded from the bathroom on the basis of the "sex stereotype." Ditto for cisgender men who want to use the women's bathroom for whatever reason.

You're erroneously claiming "no harm" by focusing only on the sub-set of cisgender individuals who aren't impacted by the State's exclusionary policy because they're content to comply with it. But, by that logic, the State's exclusionary policy imposes "no harm" on transgender individuals either, because there's likewise a sub-set of transgender individuals who still prefer to use the bathroom that matches their biological sex, for various reasons (e.g., to avoid complaints from others).

In short, the State's practice of sex-segregating bathrooms based on biological equipment imposes harm on some (but not all) transgender individuals and some (but not all) cisgender individuals. Thus, once you accept that sex-segregating bathrooms based on biological equipment is "sex stereotyping" across the board, the practice must be prohibited across the board. And you rightly haven't disputed that sex-segregating bathrooms based on biological sex is "sex stereotyping" across the board, because there's no conceivable argument that a focus on biological functions is "sex stereotyping" as applied to transgender individuals, but not "sex stereotyping" as applied to cisgender individuals.

PS. Here's another way of making my point: Consider the cisgender woman who wants to use the men's room because the line is shorter and who is excluded based on her biological equipment. Why doesn't she have a claim under federal law? After all, she is definitely being treated differently than a cisgender man, "on the basis of her sex." The reason she has no claim is that everyone understood in 1964, and continues to understand now, that treating cisgender women and cisgender men differently with respect to bathrooms is not prohibited sex discrimination because there are real biological differences that justify the differential treatment.

But, of course, those real biological differences are equally present for a transgender man who wants to use the men's room. And there's no textual basis for the conclusion that real biological differences somehow justify differential treatment of cisgender women and cisgender men but don't likewise justify differential treatment of cisgender women and transgender women.

On the original point of this post, no pun intended, Professor Dorf is right that new originalists generally disfavor expected applications vis-a-vis original public meaning when interpreting the Constitution. But do textualists (new or old) disfavor them when interpreting statutes? My sense is that no, they don't. This may have to do (if I'm right) with the specificity of statutes relative to the Constitution; generally the more specific a rule is, the less it makes sense to insist on a divide between original expected applications of the rule and original understandings of the rule's meaning, while the more vague a rule, the easier it is to imagine its authors grasping the rule's meaning but being mistaken about some of its applications, making their expectations about applications less valuable. However, note that Title VII isn't much less vague than the Fourteenth Amendment itself, and query whether the objections to expected applications in the originalist context therefore apply with nearly equal force to Title VII.

On Hashim and Jim's colloquy, I think Jim is right. It isn't correct to say that Jim and the DOJ want a legal regime under which only cisgender people can be the subjects of biological-equipment-based sex-role discrimination because they don't mind it; rather, Jim wants a legal regime under which no one can be the subject of that kind of discrimination. If it so happens that, as is usually the case, someone's self-perceived gender matches up with their biological equipment, their biological equipment will predict what bathroom they can use, but that's just contingent; it can never legally determine, under Jim's regime, what bathroom they can use.

Asher: I don't think you're correctly describing Jim's position, and you're certainly not correctly describing DOJ's position. DOJ isn't arguing that States can't even exclude cisgender individuals who want to use the opposite-sex's bathroom (for reasons of convenience or whatever). But those individuals are indeed the subjects of biological-equipment-based sex-role discrimination: the sole reason that the State is excluding them from the sex-specific bathroom they want to use is because they lack the biology of that sex. The State is completely indifferent and agnostic about an individual's so-called "gender identity" -- the one and only determinant of access to a sex-specific bathroom is having the biology of that sex.

Now, if DOJ was arguing that even cisgender individuals can't be excluded from opposite-sex bathrooms because that too is "sex role discrimination based on biological equipment", then my original objection of incoherence would be gone. But i'd substitute an objection of absurdity, on any theory of textualism, since no one in 1964 or now thinks that federal law completely prohibits sex-segregated bathrooms.

PS, Asher, I think you're making the same mistake that Jim initially did. You're focusing on the rule that doj wants to impose on states (segregated bathroom access must turn on gender identity), rather than focusing on the States' actual practice (segregated bathroom access turns on biological equipment) and asking whether *that practice* is discrimination "on the basis of sex." Under that latter inquiry, it's clear that the practice of conditioning access on biological equipment is either "sex role discrimination" across the board or not at all -- it can't be a invalid "sex role" practice as applied to transgender individuals but a valid non-"sex role" practice as applied to cisgender individuals.

Let me try one last way of making my point: DOJ's position is that it's perfectly fine to segregate bathrooms, *so long as* the segregation is done by *self-perceived gender identity* rather than by *biological sex.* DOJ's argument is that a State's failure to defer to an individual's self-perceived gender identity is a form of "sex role stereotyping." But, even assuming that's true, it would *equally* be "sex role stereotyping" to segregate bathrooms based on self-perceived gender identity: the State would be saying that individuals who think they're men must use separate bathrooms from individuals who think they're women.

Moreover, *that* form of "sex role stereotyping* has no legitimate defense. The reason biological-sex-segregated bathrooms have always been understood not to constitute discrimination "on the basis of sex" is because everyone recognized that real biological differences justified differential treatment in light of legitimate privacy concerns. But once there are people with both male and female biology in the "men's" room and in the "women's" room, then there's no possible justification for *excluding* anyone from either room (or for even having *separate* rooms at all). In short, biological-sex-segregated bathrooms and self-perceived-gender-identity-segregated bathrooms are indistinguishable in the extent to which they treat individuals differently based on "sex role stereotypes," but there's no legitimate justification for the latter while there is a legitimate justification for the former. Yet DOJ is saying that the latter is *required* if bathrooms are to be segregated at all.